SALEM, Ore. (CN) - A fight over whether the Portland police improperly monitored protesters by livestreaming protests during the summer of 2020 landed before Oregon's highest court Thursday as attorneys sparred over the meaning of "collection."
"A collection implies the purposeful gathering, seeking out of a specific type of thing - in this case, information about the First Amendment conduct of specific, again, individuals, groups, corporations, et cetera - and bringing them together into a common fund," said Denis Vannier, senior deputy Portland city attorney.
A protester and the American Civil Liberties Union of Oregon sued Portland in 2020, accusing the city of violating a statute barring the collection of political, religious or social views of people by livestreaming the protests. Protesters had taken to the streets to demand change in the aftermath of George Floyd's murder.
The city maintained the livestreams were used only to provide the police's incident command with a real-time view of the situation and that the livestreams, which were viewable on the police's X account, were never kept or reviewed after the fact.
The plaintiffs asked a trial court to declare the broadcast violated a statute barring law enforcement from collecting or maintaining "information about the political, religious or social views, associations or activities."
The trial court agreed with the protester and ACLU, and the Court of Appeals affirmed that ruling. Before the Supreme Court, the city argued both courts had made a mistake.
"Merely watching a live event without more is not collecting, let alone collecting information about an identifiable individual, group, association, organization, corporation, business or partnership," Vannier said.
Justice Christopher L. Garrett asked whether "collecting" could be interpreted as gathering and holding information mentally, but the city argued such behavior would fall short of the statute's intent.
"There is nothing in the legislative history that suggests that the legislature was concerned about officers just walking around simply seeing things," Vannier said. "The thrust was the idea that police were, in fact, purposely targeting certain groups, individuals, you know, to gather and bring into their files or databases."
The city argued law enforcement doesn't contravene the statute just by using something like CCTV to monitor an event taking place in public in real time. For example, the courthouse has cameras monitored by Oregon State Police personnel, which Vannier argued is not a violation of the statute.
"That does not mean that Oregon State Police has collected information about us within the meaning of the statute," Vannier said. "And so the fact that I might have parked my car in front of this building and that there's a political bumper sticker on my car does not mean that Oregon State Police is collecting that information."
Edward Piper, attorney with Glenmorrie Law representing the ACLU and the protester, turned back to the definition of the statute at issue.
"Given the facts that we have here, though, in considering them all together, what occurred with PPB's live streams was indeed a collection," Piper said.
The ACLU and the protesters argued the definition of "collect" would involve the "transmission of some tangible or intangible data in some form" and that the Legislature intentionally used a broad term.
Chief Justice Meagan Flynn questioned the plaintiffs about the reach of the statute.
"So what's your position about whether mere observation of a group engaging in protected activity is covered by this statute?" Flynn asked.
Piper said it is fact-dependent.
"There has to be a collection of something, and that something has to be information within the meaning of the statute," Piper said. "A collection occurs when something is gathered together or brought together in any way beyond just the use of eyeballs and ears."
In this particular instance, there was a collection, Piper argued.
"It's clear from what's in the record that the camera is being pointed at protests," Piper said. "There's nothing accidental or sort of incidental about it."
Plus, there was retention of at least some of the livestreams from YouTube, Piper argued.
"The key fact is that it was not just being watched with eyeballs and ears," Piper said. "There was the creation, the processing and the, in this case, purposeful dissemination of that information for a specific purpose."
The city held firm in its position.
"We believe that the city's rules adequately comply with text, context, and legislative history," Vannier said.
The Oregon Supreme Court did not indicate when it would rule.
Source: Courthouse News Service
